How Dead is the DISCLOSE Act?

November 9, 2010 - by Donny Shaw

The upcoming lame duck session is the last chance for Congress to require disclosure of unions, corporations and special interests that donate to campaigns, without limit, under the loopholes opened up by the Supreme Court’s Citizens United v. FEC decision. If it doesn’t get done before the year ends, the Republicans, who have stood in lock-step against disclosure, will gain even more influence in Congress and the 2012 elections will be controlled by secretive special interests to a whole new level.

Jesse Zwick has a great piece in the Washington Independent today explaining why Republicans, who have historically favored transparency initiatives like this, aren’t biting on the Democrats’ disclosure bill, the DISCLOSE Act. According to Zwick, the problems with the bill really started when the House of Representatives added a carve-out in the bill for membership groups like the NRA. That allowed the bill’s opponents to argue that it was the result of a corrupt process and was not a pure transparency initiative, so when it moved to the Senate, the moderate Republicans that the Dems had been courting to help them overcome a filibuster were not willing to participate in talks.

By the time the bill was slated to be brought up again in Congress for a vote in late September, it suffered from a breakdown in trust. Both sides realized that the current bill was a nonstarter, but there was no time in the packed legislative schedule to take the multiple days required to introduce a new, stripped-down version. Instead, Democrats urged Snowe and Collins to vote for cloture on the bill as it stood, on the assurance that the Democratic leadership would scrap whatever the senators didn’t like when it came time for debate and amendments. But such a deal would have required the confidence of all parties.

“My understanding — and I’ve talked to both Republican and Democratic offices — is that Democrats were saying, ‘Well, just tell us what you want,’ and Republicans were saying, ‘Tell us how you’ll change it and then we’ll talk,’” said Meredith McGehee, who lobbies for greater transparency in campaign finance for the Campaign Legal Center.

Other campaign finance reform advocates take a more cynical view. “A pared-down version was being discussed in the last round and that wasn’t what the issue was,” said Craig Holman, a campaign finance expert at Public Citizen, a citizen lobby group. “The Republicans, down to Collins and Snowe, even though their public denunciations were about unions, none of them ever meant that. All they wanted was anonymous corporate support in 2010 and 2012.”

In either case, the Maine senators, having already decried the bill once, cited their same complaints and voted ‘no’ once again. A vote for cloture was too close to a vote for the bill itself, and moreover, it opened the door to the possibility of Democrats pulling a fast one and passing the bill without amendments, denying them any input and earning them the wrath of the Republican caucus for enabling Democrats to enact their agenda. The bill failed to overcome a filibuster by a single vote.

If the Democrats push a new stripped-down version of the DISCLOSE Act — one focused only on disclosure and with no carve-outs — in the lame duck, they may have a chance to get someone like Snowe, Collins or Brown on board. But the results of the midterms might make it even tougher than before to get them on board. Among political groups that used the Citizens United ruling to keep their funding sources secret, Republicans outspent Democrats by a ratio of nearly six to one. Political attack groups like the Rove-connected American Crossroads don’t work with disclosure. We saw them fail as a traditional 527, and then we saw them succeed wildly when they used the Supreme Court ruling and turned into a secretive 501c(4).

So, more than ever, the plates are stacked against Democrats getting this done, but they may have a chance in the lame duck if they start with a fresh, stripped-down bill. It certainly will be there last chance until at least 2013. However, as I’ve been explaining on this blog, there is just very little time left for Congress to be in session, and with the uncertainty surrounding the DISCLOSE Act, the Democrats will probably decide not to try in order to avoid a time drain.

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